Gorman v. University of Miami, 76-492-Civ-CA.

• Decision Date: 19 May 1976
• Docket Number: No. 76-492-Civ-CA.,76-492-Civ-CA.
• Citation: 414 F. Supp. 1022
• Parties: John GORMAN, Plaintiff, v. UNIVERSITY OF MIAMI, a Florida Corporation not for profit, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

414 F. Supp. 1022

John GORMAN, Plaintiff, v. UNIVERSITY OF MIAMI, a Florida Corporation not for profit, et al., Defendants.

No. 76-492-Civ-CA.

United States District Court, S. D. Florida.

May 19, 1976.

Stephen L. Raskin and Bretan & Marks, Miami, Fla., for defendant Kirsner.

Stephen A. Cahen, Miami, Fla., for plaintiff.

Charles Kline, Miami, Fla., for defendant University of Miami.

ORDER GRANTING SUMMARY JUDGMENT

ATKINS, District Judge.

This cause is before the Court on motion of all defendants to dismiss the complaint or in the alternative, to grant summary judgment. The issues have been briefed and affidavits having been submitted and the Court having considered the record as it stands in toto, the motion will be treated as one for summary judgment. Rule 12(c), FRCP.

In Count I of his complaint, plaintiff seeks relief under 42 U.S.C. § 2000e et seq. Title VII, Civil Rights Act. Under 42 U.S.C. § 2000e-5(c) and (e), time requirements are established for the filing of claims. Florida, specifically Dade County, Florida has a recognized deferral agency known as Dade County Fair Housing and Employment Appeals Board. See 29 C.F.R. § 1601.12(m) (1975). It was with this deferral agency that plaintiff first filed his claim. 42 U.S.C. § 2000e-5(e) provides that the time for filing a claim with the EEOC can be extended up to 300 days if the plaintiff first files with a recognized state deferral agency. The issue before this Court is whether or not a filing with the deferral board after 180 days from the date of the alleged discrimination is sufficient to enable plaintiff to claim the benefits of the extended filing time with the EEOC.

It is undisputed that the Dade County Fair Housing and Employment Appeals Board did not consider the charge timely filed. Affidavit of Jan Feagans, ¶ 3. The Miami District Office of the EEOC Commission issued a Notice of Right to Sue on December 13, 1975 because the charging party failed to proceed. Affidavit of Theodore A. Bukowski ¶ 4. The plaintiff filed a Charge of Discrimination with the EEOC on April 2, 1975. Affidavit of Theodore A. Bukowski ¶ 3. The charge was filed within 300 days of the alleged discrimination.

Plaintiff seeks application of the extended filing provision, 42 U.S.C. § 2000e-5(e) in this case, and the Court notes that he has filed no supporting affidavits in favor of his position. See Rule 56(e), FRCP.

While the Fifth Circuit has held that the 180-day filing requirement will not bar a suit by a plaintiff who has not learned, nor in the circumstances could reasonably have been expected to learn, the facts that would support a charge of unlawful employment practice until the filing period had already passed, Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), where there are no extenuating circumstances, the Court has applied the regular filing deadline. East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975). In addressing the issue of whether or not the statutory filing time is jurisdictional, the Court referred to its decision in Reeb, supra, and noted that in the case before it

. . . there are no indications that the bases of a charge of discrimination were unknown to the plaintiff until after the alleged discriminatory incident took place. The regular filing deadline is therefore applicable. East v. Romine, Inc., supra.

This Court finds that the case before it falls within the holding of East and that the filing with the deferral agency not being timely, plaintiff is barred from seeking relief under the provisions of 42 U.S.C. § 2000e-5 et seq.

In treating the statutory filing period under the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq.,...